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Appeals court sides, 2-1, with Graham, overturns judge’s order to release body cam footage from Oct. 31, 2020 protest

News organizations had sought all law enforcement footage from Halloween Day march and protest demonstration from 2020; the protest ended when law enforcement agencies used pepper spray to disperse the crowd

The state’s second-highest court has overturned an order entered by Alamance County superior court judge Andy H. Hanford in June 2021, directing the release of body camera footage and other recordings captured by law enforcement during a “march to the polls” that ended in the dispersal of pepper spray and nearly two dozen arrests after it reached Graham’s Court Square on October 31, 2020.

A three-judge panel for the Court of Appeals split 2-1, with the majority concluding that none of the seven media outlets that had petitioned for the release of the recordings was entitled under a state law that governs law enforcement recordings. They also concluded that that Hanford’s order had been too far-reaching in directing the blanket release of unredacted copies of any and all recordings captured by law enforcement during the “I am Change” march in downtown Graham on Halloween day in 2020, which also coincided with the last day of early voting for the 2020 general election.

At the conclusion of the hearing in Alamance County superior court in June 2021, Hanford directed the Graham police department and Alamance County sheriff’s office to hand over unredacted copies of the recordings to seven media outlets who had filed a petition earlier last year to compel the two law enforcement agencies to hand over all recordings they had captured on October 31, 2020. The two law enforcement agencies appealed, resulting in a stay of Hanford’s order.

The petitioners included: The McClatchy Company, which owns the Raleigh News & Observer; Carolina Public Press; Capitol Broadcasting, the proprietor of WRAL; Lee Enterprises, which owns the Greensboro News & Record; Hearst Properties, the owner of WXII; and the Gannett Company, which owned the Burlington Times-News. Other petitioners included Mackenzie Wilkes, John Norcross, and Grace Terry of the Elon News Network.

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The petitioners had sought the release of materials, including but not limited to, recordings from “all-body worn cameras, dashboard cameras, handheld recording devices of any kind, drones/unmanned aerial vehicles, stationary cameras, or any other video or audio recording devices operated by or on behalf of a law enforcement agency or law enforcement personnel…at the time of the first contact [with the marchers] at the courthouse,” based on court filings.

Meanwhile, video clips and still photos captured by law enforcement were subsequently shown at the trials – which began in Alamance County district court in February 2021 and ran through the fall of 2021 – for most of the defendants who had been arrested on Halloween day 2020.

After Hanford’s order was stayed, one of the defendants charged that day, Kelly Skahan, a lawyer and volunteer election observer for the Democratic Party, provided several of the petitioners with police bodycam footage, which she said she’d obtained from the Alamance County district attorney’s office to prepare for her defense, Carolina Public Press and other media outlets reported in July 2021. (The D.A.’s office dismissed the misdemeanor charge of failure to disperse against Skahan before her case went to trial in the spring of 2021.)

The divided three-judge panel for the Court of Appeals last week overturned Hanford’s order and remanded the case to Alamance County for additional findings of fact.

In his opinion for the Appeals Court majority, judge John Tyson recounted five objections to the release that had been argued by the attorneys for the Graham police department.

These objections included: “Lack of a compelling public interest, since the events at issue had occurred more than 6 months ago and were no longer newsworthy”; the “petitioners did not seek to obtain evidence to determine legal issues in a current or potential court proceeding”; “the expansive nature of petitioners’ request ensures extraneous footage of march participants will be released, creating the risk of harm to reputation or safety of protest participants”; and on the basis that “such release creates a threat to the fair, impartial, and orderly administration of justice,” in part because several defendants arrested at the march were awaiting criminal trials in Alamance County district court.

The Appeals Court majority also concluded that Hanford had failed to make required findings of fact regarding the petitioners’ eligibility to seek release of the bodycam footage, as outlined by a state law that governs the release of law enforcement agency recordings.

That statute limits the release of law enforcement recordings to five categories of individuals, including: a person whose image or voice is in the recording; a personal representative of an adult, a minor, or an adult person “under lawful guardianship” whose image or voice is in the recording; a personal representative of a deceased person whose image or voice is in the recording; and/or a representative of an adult who is incapacitated.

“The release of recordings in the custody of a law enforcement agency under any section sequentially requires the petitioning party to show it qualifies,” Tyson wrote in his opinion for the Appeals Court majority, concluding that Hanford had failed to meet that statutory requirement.

Attorneys for the two law enforcement agencies had argued at the hearing in Alamance County in June 2021 that law enforcement recordings “are not public record” under the statute, and that “only personal representatives have an absolute right to access these videos,” based on the factual background cited in the opinion for the Appeals Court majority.

“[Hanford] failed to check any of the boxes on the Petitioners’ eligibility or relevance and failed to make any oral findings of eligibility to release on the transcript in open court,” Tyson wrote.

The Appeals Court also agreed with the city’s attorneys in arguing that Hanford had abused his discretion by directing the release of all unredacted recordings and materials, without imposing any restrictions on the release.

Quoting the order that Hanford entered in June 2021 – which stated, “This Court does not have the authority to censor the photos/recordings absent a compelling governmental interest and none was shown” – Tyson concluded that “this notion flips the express restrictions of the statute on its head.”

 

Hanford’s order
Hanford had conducted an in camera review (i.e., in his chambers) of the requested materials during the spring of 2021, prior to ruling that their release was “necessary to advance a compelling public interest,” the case background states.

Alamance County superior court judge Andrew “Andy” Hanford

At the same time, Hanford acknowledged that the materials could reveal information “of a highly sensitive personal nature” that “may harm the reputation or jeopardize the safety of a person” but ultimately found that they would not create “a serious threat to the fair, impartial, and orderly administration of justice.” But he determined that the potential harms were outweighed by “a compelling public interest in the accountability and transparency of law enforcement officers,” according to the case background.

“The photos/recordings speak for themselves,” Hanford wrote in his June 15, 2021 order.

“This court does not have the authority to censor the photos/recordings absent a compelling government interest, and none was sustained. The court gives great weight to transparency and public accountability of police action, and the failure to release the photos/recordings would undermine the public trust and confidence in the administration of justice.”

Hanford had directed the sheriff’s office and Graham police department to turn over all unredacted recordings and materials relevant to the request by June 25, 2021, but the two law enforcement agencies appealed, resulting in a subsequent stay of Hanford’s order.
That order is to remain in effect, pending the final resolution of the case, Tyson wrote in his opinion for the Court of Appeals. Judge Fred Gore concurred.

 

Dissenting opinion
However, Appeals Court judge John Arrowood issued a dissenting opinion, in which he reasoned that the court’s majority had applied an overly-narrow interpretation of the eligibility requirements to file a petition for law enforcement recordings. Arrowood countered that the statute that governs enforcement recordings merely addresses how a person who is entitled to disclosure of such recordings “would go about petitioning for the release.”

The dissenting judge pointed to a separate subsection of the statute, which states, “Recordings in the custody of a law enforcement agency shall only be released pursuant to a court order. Any custodial law enforcement agency or any person requesting release of a recording may file an action in the superior court of any county where any portion of the recording was made.”

“Though the statute is long-winded, it is not complex,” Arrowood wrote in his dissent. “The statute plainly distinguishes between those persons who are entitled to disclosure of recordings, and those who are not…Indeed, such distinction, which the majority either ignores or fails to perceive, is plainly summarized in each subsection header.”

Arrowood acknowledged that the petitioner media outlets “do not fall within any of the enumerated categories of persons entitled to disclosure as a matter of right” but this doesn’t categorically bar them from filing a petition to seek release of those recordings.

“Most importantly and poignantly, however, is that the consequence of the majority’s reasoning is dangerous,” Arrowood wrote in his dissenting opinion. “Such an interpretation of the [relevant statute] would ensure that members of the media would never be allowed to petition the superior court for release of [law enforcement] recordings, let alone obtain them via court order. I see no support in the statute for such a draconian result.”

Arrowood also disagreed with the majority’s conclusion that Hanford had “misapplied” the statute governing the release of law enforcement recordings. “[Hanford] analyzed each statutory standard with careful consideration and, based on its detailed analysis, concluded that the only acceptable outcome was to order for the release of all of the petitioned recordings.

“Furthermore, the very fact that [Hanford] considered additional standards – namely, transparency and public accountability – in [his] analysis, as allowed by statute, indicates that [he exercised his discretion] scrupulously,” Arrowood wrote.

The split decision by the Appeals Court doesn’t automatically result in an appeal to the state Supreme Court, thought there is an automatic right to appeal.

There’s also an option to file for a hearing before the full, 15-member Court of Appeals.

The petitioners haven’t yet indicated whether they intend to pursue either avenue.

The petitioners were represented by Mike Tadych, Hugh Stevens, C. Amanda Martin, and Elizabeth Soja of the Stevens Martin Vaughn & Tadych law firm in Raleigh. The two enforcement agencies were represented by Adam P. Banks and Anthony J. Biller of Envisage Law, also based in Raleigh.

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